NO. 84-418 IN THE SUPREME COURT OF THE STATEOF MONTANA 1.985

CONNIE LIMRERHAND,Individually,and as Personal Representative of the Estate of JAYIjONLIMBERHAND, Deceased Minor, Plaintiff andAppellant,

BIG DITCH COMPANY; CITY OF BILLINGS; KEN NICHOISON andALLEN PJICHOLSON, each individually and d/b/aAPPLE CREEK PROPERTY MANAGEMENT, INC., Defendants and Respondents.

APPEAL FROM: District Court of the Thirteenth JudicialDistrict, In and for the County ofYellowstone, The Honorable Charles Luedke, Judgepresiding. COUNSELOF RECORD: ForAppellant: Moses Law Firm;Paul.M. Warren argued, Billings, Montana For R.espondent : Crowley,Haughey, Hanson,Toole & Dietrich; Don Harris argued for Rig DitchCo., Billings, Montana Keefer, Roybal, Hanson,Stacey & Jarussi;J. Dwaine Roybal argued for City of Billings, Billings,Montana Jardine,Stephenson,Blewett & Weaver; Lon T. Holden argued forMicholson,Great Falls,Montana ForAmicus Curiae: Ted J. Doney forMont. Water DevelopmentAssoc., Helena,Montana

Submitted: IqaY 2, 1935 ~~~id~d: September 26, 1985

Filed:

ClerkMr. Justice John C. Sheehy delivered. the Opinion of the Court.

Appellant, Connie Limberhand,brought this action jn the District Court, Thirteenth Judicial District, Yell-owstone County, to recover damages for the alleged wrongful death of her 18-month-old son, Jaylon, who drowned in an irriqat-ion ditch. The irrigation ditchwas a lateral from the main channel of the Big Ditch which was constructed early in this century by the Minnesota and Montana Land Improvement Company and subsequently acquired by the Big Ditch Company, which currently owns and operates the ditch and laterals. Rig Ditch Company owns the right-of-way where the ditches flow but it does not own the adiacent land. This particular lateral originates west of the City of Bill-ingsand ends at Nina Clare Street,approximatelyonemile within the Billings city limits. Water from the ditch system, including the lateral, is used to irrigate agricultural and other lands. Apple Creek Apartments, an apartment complex owned and managed by Ken andAllenNicholson,who dobusiness under the various corporate names appearing above,are located on Lands which border the irrigation ditch where Jaylon Limberhand drowned on June 27, 1981. It appears from the record here, though not clearly (unfortunately,all the parties here have failed adequately to develop the applicable facts, and some of the facts herein stated are gleaned. from their briefs), that Apple Creek Apartments are locatedwest of Rehberg Lane and west of a daycare center,which also abuts the irrigation ditch,andwhich is completely fenced. A fence separates the Apple Creek Apartments on the south side from otherresid-entialproperty. Apple Creek Apartments consists of two buildings, one larger than the other and between the buildings and extendingnorthward fromone of them toward the ditch is a paved parking lot which abuts the ditch easement, perhaps within 30 feetof the irrigation ditch. As admitted by the Ni.cholsons, on the day of the accident,Connie Limberhand and her young sonwere guests of certain tenants residing at the Apple Creek Apartments. Jaylon Limberhand apparently wandered away from his mother, left the apartment where they were visiting, crossed the parking lot which separates the apartment complex from the ditch, and slipped or fell into the ditch. Jaylon survived for 1day in thehospital. Plaintiff predicates liability as to the City of Billings on the grounds that the City, in the enforcement of its ordinances, failed to declare the open irrigation ditch here apublic nuisance and to order the ditch closed.or other protective measures taken by Rig Ditch Company to prevent drowning accidents. Each of the named defendants moved the court for a summary judgment in their respective favors,and the District Court granted summary judgments as to all of the defendants. Connie Limberhand appeals to this Court from each summary judgment againsther. She poses the following issues

on appeal: 1. With respect to Big Ditch Company the District Court erred inholding that: (a) Connie Limberhandhad notmet the elements of attractive nuisance as a basis of liability against Big Ditch.(b) Connie Limberhand did not state a cause of action innegligence againstBig Ditch. (c) The City Ordinances place no additional d-uty

or burden upon Big Ditch Company. 2. With respect to the City of Billings, Connie Limberhand argues the District Court erred in holding that the City of Billingswas under no duty to act and declare the irrigation ditch a nuisance and require implementation of protectivedevices. 3. With respect to defendants Nicholsons, Connie Limberhand argues the District Court erred in holding that adjacent landowners owed no duty to the decedent to protect in anyway against drowning accidentson lands adjacent to the Nicholsons' land holdings. We affirm the summary judgment granted by the District Court in favor of the City of Billings. We reverse the summary judgments entered in favor of Big Ditch Company and the Nicholsons,and remand to the District Court for further proceedings in accordwith this opinion. I. Big Ditch Company A. 

### - Attractive Nuisance The doctrine of attractive nuisance is recognized in Montana and we have recognized the Restatement (Second) of Torts 339 as setting forth the elements necessary to establish an attractive nuisance. Big Man 

### v. State (Mont. 1981), 626 P.2d 235, 240, 38 St.Rep. 362, 368; Gagnier v. Curran Construction Company (1968)

## , 151Mont. 468, 473, 474, 443 P.2d 894, 897, 898; Driscoll v. Clark (1905), 32 Mont. 172, 80 P. 1. Whether the doctrine of attractive nuisance should be applied to drowning incidents in irrigation ditches has notbeen clearly statedby us.Tt is true that in Fusselman v. YellowstoneValley Land and Irrigation Co. (1917), 53 Mont. 254, 163 P. 473, this Court made reference to the elements of attractive nuisance in sustaining a directed verdict by the District Court against aplaintiff seekingdamages for thedrowning death in an irrigation ditch in Livingston of a three-year-old girl. In 1917,this Courtwas of the opinion that in apleading for injuries received upon the defendant's property, the complaint must disclose by what right the injured party was upon thepremises. In Fusselman,we held thatbecause of the failure of the plaintiff to allege that the decedent was attracted to the canal or that by reason of its peculiar attractiveness, she went upon the canal and met her death, the complaint failed to state a cause of action under the doctrine of the turntable cases. In the case before us, Connie Limberhand contends that the doctrine of attractive nuisance is applicable as to the Rig Ditch Company and that she meets here the elements of attractive nuisance as set forth in Restatement (Second)of Torts, 339. Big Ditch apparently accepts the applicability of the attractive nuisance doctrine to this case, but contends the elements arenotmet. A problem exists with respect to the automatic application of the attractive nuisance doctrine to ordinary irrigation ditches. While such irrigation ditches are artificially constructed, for themost part they have natural characteristics,and there may be little to distinguish them from the numerous streams, rivers and creeks that occur naturally in Montana, and flow in many instances through towns,vil-lagesand cities. Theattractivenuisance doctrine is not quite applicable to such artificial bodies of water;otherwise it could be contended that a landowner through whose property a natural stream flows is in reality maintaining an attractive nuisance. Tt is because courts have failed to recognize the distinction between bodies of water having natural characteristics and other artificial bodies such as swimming pools, sewage treatment plants and the like, that there appears to be a disparity in the holdings of courts with respect to drowning incidents in artificial bodies ofwater. For example,the rule announced in Fusselman,that theremust be an implied invitation to a child to come upon the owner's land in order to hold the owner liable is not the lawof this state tod-ay. There are, however, cases in this State and others from which aproper rule canhe drawn. Troglia v. Butte Superior Mining Company (9th Cir. 1921), 270 F. 75, was a case involving an eleven-year-old boy who drowned while swimming in a pond on the premises of the defendant mining company. The pond.had been constructed to furnish water to a mill, and was formed by damming a small stream. Thepond.was 100 feet long and 75 feet wide and from 1 to 12 feet deep. Itwas not enclosed. Therewere notices posted around. it which said "no trespassing," "private property," "10 feet deep," an.d "keep away." Nonetheless, boys swam there in summer as a matter of practice. This particular decedentwas strong,in the seventh grade and able to read. After two hours of swimming in the pond, he apparently got crampsand drowned. Themining companyhad an attendant forapump nearby. InTroglia,the CourtofAppeals stated: Thedegree of care requiredof one whomaintains on his land an artificialpool for a useful purpose is notgreater than that required of one throughwhoseland flows a natural strea-m,and he is bound to no special care or precaution for the protection of children who are in the habit of swimming in the same, unl-essthere is in the pool some peculiar danger, in the nature of ahiddenperil or trap for the unwary, of which he has or ought to have knowledge.

It is noteworthy that Trogliawasdecided in 1921before the decision in Erie v. Tompkins (1938), 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188,but nevertheless, Troglia spoke a rule applicable to aMontana decedent. In a recent case before the Ninth Circuit, Harmon v. Billings Bench Water Users Association (9thCir. 19851, 765 F.2d 1464, the Court of Appeals reversed a summary judgment in favor of the ditch company granted by the federal district court in a drowning case inMontana. The Court ofAppeals in Harmon accepted as settled that the attractive nuisance doctrinewas applicable to irrigation ditches in Montana. In

so stating, it relied on 

### - Troglia, supra, and upon Coeur dlAleneLumber Company v. Thompson (9thCir. 1914), 215 F. 8. The Court of Appeals decided that there was a genuine issue of material- fact as to whether the ditch might have presented a hidden danger that Harmon's son did not appreciate. Themother had testified that the concrete sides of the ditch were much steeper than the natural bank they ad.joinedand that on the day in question, thewaterwas above the concrete sides. The Court ofAppeals likened these facts to those in Thompson (ofwhich more later) and thus put the Harmon case within the hidden danger exception of the Restatement on attractive nuisance. The Court of Appeals also disagreed with the FederalDistrict Court'sholding that the erection of safety devices such as a childproof fencealong the course of the ditch would be an oppressive burden upon the ditch company. Coeur d'Al-eneLumber Company v. Thompson, supra,was a case arising from the FederalDistrict Court in Idaho. There t.he d.efendanthad operated a lumber mill at St. Maries and had built a cistern orwell for storage ofwater. The water

was used in connection with the operationof the lumbermill. Theparticularwaterbody had been constructedby the company

or its lesseeby digging around anatural spring,and placing around the spring awooden wall approximately 4 feet high and 4 feet square through which thewater bubbled up and escaped. The lessee in operating the mill had.d-umpedsawdustand other debris in such manner as to obstruct the discharge of the spring after it filled thewell. A pond of water accumulated about 1-2 feet over the level of theplanked well. Moreover, sawd-ustfloated on top of the resulting pond. The shallow pond was 12 to 15 feet wide and 25 to 30 feet long and the wooden construction underneath the water was hidden from view. Two boys waded into the pond and one of them suddenly dropped into the constructed well.. The other boy tried to save him and both of them drowned. The Court of Appeals found that the circumstances of thewell constituteda hidden trap and a-ffirmeda judgment for the wrongful death of the decedent. From Harmon, Troglia and Thompson, supra,we can deduce

a ruleproper for application todrowning incidents involving immature children rather than the attractive nuisance doctrine. Accordingly, we hold that the degree of care of one who maintains onhis land an artificial streamorbody of water for a useful purpose,where the streamorbody of water has natural characteristics, isno greater than the degree ofcare required of one through whose land flows a natural stream or contains a natural body of water. The owner or

user of an artificial stream orbody ofwater having natural characteristics is bound to no special duty of care or precaution for the protection of children who may enter therein,unless there is in or about the artificial streamor body of water somepeculiar danger, in thenature of a hidden peril or trap for the unwary, of which the owner or user has

or ought tohave notice. Thedoctrine of attractive nuisance

as such does not apply to such artificial streams or bodies ofwater anymore than it applies to natural streams or bodies ofwater. Such aholding has these advantages: (1) Itavoids the disparity in the cases, some of which hold that attractive nuisance is applicable to irrigation ditches, and most of which hold it is not; (2) the holding is based more on the concept of negligence than attractive nuisance, and the ordinary concepts of negligence, that is, duty, breach and proximately-caused injuries are more useful in determining liability 

### in such instances;and (3)the holding avoids legal fictions, such as attractive nuisance, which developed originally to excuse the unwitting trespass by children. In Harmon, in footnote 3, the Circuit Court of Appeals felt that this Court had vacillated on the necessity of statusof the injuredparty in determining theduty owedby a property owner to an injured party. 765 F.2d at 1467. In Corrigan v. Janney (Mont. 1981), 626 P.2d 838, 841, 38 St.Rep. 545, 549, in construing section 27-1-701, MCA (formerly section 58-607, R.C.M. 1947), we held that the statute prevented us from distinguishing between social guests and invitees in determining the liability of thelandowner for injuries received. We regard the same statute

as decl-aringthe applicable law as to the duty of landowners to persons though they may be trespassers. The test is always not the status of the injured party but the exercise of ordinary care in the circumstancesby the landowner. The statuteprovides: Everyone is responsible not only for the result of his wilful acts but also for an injury occasioned to anotherby hiswant of ordinary care or skill in the management of his property or person except so far as the latter has wilfully or by want of ordinary care brought the injury upon himself. Section 27-1-701,MCA. Although in a later case, Cereck v. Albertson's, Inc. (1981),1-95Mont. 409, 412, 637P.2d 509, 511, we stated that the duty imposed on aproperty owner depends on the status of the injuredparty, that statement isnot correct in the light of section 27-1-701,MCA, above quoted. It appears plain therefore,that the motion for summary judgmentwas submitted for decision to the District Court as to Big Ditch Company upon an incorrect theory of liability. We therefore remand.this cause to the District Court with respect to Big Ditch for a reconsiderationof the motion for summary judgment based on the rule of law expressed herein. We express no opinion as to what that decision should be at this juncture. B

# . Neali.ence

--..A In addition to her theory on attractive nuisance, Limberhand alleged in her amended complai-ntthat the water flow in the ditch was great and that the maintenance of the ditch created a deceptive condition because of grass and weeds growing along the edge of the ditch and under the surface of the water. She also alleged that theconstruction, design andmaintenance of the ditch omitted all safety measures such as warnings, fences or other protective devices, and that the hazards and dangers of the ditch were hidden and notdiscoverableby a child of tenderyears. In the discussion on attractive nuisance,we have set forth a rule to determine liability, if any, of the owner of lancis which contain artificial streams or bodies of water with natural characteristics. Tf on remand the District Courtdetermines that a genuine issue ofmaterial factexists

as towhether the irrigation ditch here in questionpresented

a peculiar danger in the nature of hidden peril or trap for the unwary, a fact issue would arise for a jury or other trier of fact. It would follow that the court would then instruct the jury that theduty of providing warnings, fences

or other protective devices for the unwary would be measured by the landowner's duty to exercise "ordinary care or skil-1 in the management of his property" pursuant to section 27-1-701,KCA. All questions of negligence in this case on the part of Big Ditch Company are inextricably bound up in the primary issue whether the ditch presented a peculiar danger in the nature of ahidden peril or trap for theunwary. 11. The City of Billings Ordinances Limberhand complains that Big Ditch Company is in violation of City of Billings Ordinance No. 4343, section 1-0.80.030,which states: Every person owning or operating any irrigation ditch or system or portion thereofwithin the City shall care for, mainta.in and control said irrigation ditch, system, water being transported and concomitant structures. Said care,controland interactions and reactions 

### to structures and impedimentsnot controlled ormaintained by personsowning or operating the irrigation systems. The duty imposed hereby shal-1extend to control and removal of all obstructions, litter,debris,plant materials, looseearth, rocks, stones,concrete and wood material without limitation in, on,or around said irrigation ditches. It is the contention of Limberhand that the ordinance

was violated by the Ditch Company, at least as to the plant materials, and therefore summary judgment was improper. Militating against Limberhand is the paucity of facts marshalled by Limberhand before the District Court to show that plant materials or other debris accumulated in such

manner as to violate this ordinance,and to be a legal cause of the drowning. We examine the applicable statutes and ordinances, however, because the court may have to decide issues thereunderon remand. Section 7-31-4103, has been on the hooks in substantially its present form since 1921. It provides: The city or town council has power to regulate the use and constructionof irrigationditches, drains, and flumes within or running through any city or town. With respect to open ditches, the legislature enacted Part 42, Title 7, M.CA, in 1961 for the avowed purpose of preventing the drowning of children within the limits of an incorporated city or town (sections 7-31-4201 through 7-31-4207, incl., MCA). Under 7-31-4203, MCA, it is declared that water that flows in an open ditch in an incorporated city is a public nuisance if the city or town, acting through its governing body declares it to be a nuisance. However, section 7-31-4207, MCA, provides that the part does not apply to ditches carrying water used for commercial irrigationwater purposes. Ostensibly then,under section 7-31-4207,MCA, anyordinances adopted by the City of Billings appl-yingto the Big Ditch Company lateral under the authority of section 7-31-4201,et seq., MCA, for the purpose of declaringa ditch

apublic nuisance,and providing remedial measures is outside the power of the City of Billings. Ordinance No. 4343 was adopted by the City of Billings

onApril 27, 1981. Under itsprovisions,we have already set out section 10.80.030 relating to the care andmaintenance of irrigationditches. The ordinance also provides that failure to care for and maintain the ditches as provided for in section 10.80.030 shall constitute a public nuisance. There are provisions for punishment for vj.olations of the ordinance. The ordinance further provides that the City cannot order a ditch to be discontinued or prohibit the use of the ditch if it is used by 10 percent or more of the abutting landowners on the ditch. In this case,30.6 percent of the landowners used the ditch for irrigation purposes. The further contention of Limberhand is that the City had a duty to go forward in this case and determine that the ditch in question is a nuisance and take remedialmeasures. Limberhand predicates negligenceand liability on thepart of the City for failureto take such action. Limberhand fails in this contentionon threepoints: 1) The state statutes empowering cities to adopt ordinances designed to prevent the drowning of children do not apply to commercial irrigation ditches; 2) The city ordinance itself does not apply since more than 10 percent of the abutting landowners use the ditch for irrigationpurposes;and 3) Any further action on the part of the City of Billings would require legislative action by the City Council. The failure of the City to take legislative action may not be the basisof a suit against it for liability, since the City is immune under section 2-9-111, MCA, providing immunity from suit for legislative action and omissions. The summary jud.qmentin favorof the City of Billings is therefore affirmed. (Wedo not reach the question, if the question exists, whether Billings Ordinance No. 4343 supersedes state law because of the nature of the charter of the City of Billings.) In likemanner, there isnc basis topredicate liability againstBig Ditchbased upon the city ordinance. 111. TheNicholsons The Nicholsons, d/b/a Nicholson, Inc. and d/b/a Apple Creek Ltd. and Property Management Inc.

### , hereafter Nichol-sons,owned and managed the Apple Creek Apartments that border the irrigation ditch where Jaylon Limberhand drowned

on June 27, 1981. On the day Jaylon drowned, he and his mother, Connie Limberhand, were visiting Connie's sisterwho

was a tenant of the Apple Creek Apartments. The District Court sustained Nicholsons' motion for summary judgment holding that Nicholsons owed no legal duty to the appellant or appellant'sdecedent. Appellant contends that the question of whether Nicholsons breached the common law duty to keep the premises reasonably safe and to warn of any hidden or lurking danger is one a jury should decide. We agree. It iswell-settled law in Montana that the social guest of a tenant in the

common areas of an apartment complex is afforded a degree of protection from harm in relation to the duty of a landlord. Piedalue 

### v. Clinton Elementary School District No. 2 (Mont. 1984), 692 P.2d 20, 41 St.Rep. 2344; Rennick v. Hoover (1980),186Mont. 167, 606 P.2d 1079;Olsonv. Kayser (1973),161 Mont. 241, 505 P.2d 394. The qrounds surrounding an apartment complex a.repart of the common area. See Olson, supra. We have said earlier in this opinion that the status of Limberhand as a social guest is not controlling. Nicholsons' duty is governed by the provisions of section 27-1-701,MCA, supra. The issue of Nicholsons' potential liability based on breach of a duty owed Limberhand's decedent poses a two-part query. One, could an irrigation ditch constitute a sufficient danger to tenants or their guests of an apartment complex to require that the 1and.l.ord take precautionary

measures in order to satisfy his du.tyto keep the premises reasonably safe? Two, does the fact that the irrigation ditch is owned by another and is located on land adjoining the landlord's common area absolve the landlord of liability

as amatter of law? The apartment owners owed a duty in this case to use ordinary care to have their premises reasonably safe or to

warn of ariy hidden or lurking danger. What constitutes reasonably safe premises is generally considered to be a question of fact. Whether a premises is safe depends to a large extent onwhat use theproperty isput to, its setting, location and other physical characteristics,and the type of person who would foreseeably visit the premises, as well as the specific type of hazard. or unsafe condition alleged. These and other factors are embodied in the legal concept of "reasons-ble under the circumstances." For example, the existence of an open irrigation ditch in a farmer's field poses little danger compared to the same irrigation ditch located near an apartment complex populated by families with sniall children.The duty of a landlord under section 27-1-701, MCA to

use ordinary care in managing his property imposes on hj.ma duty to make the premises reasonably safe under the test of ordinary care for all persons who forseeably might properly

come on the premises, old and young, large and small. Tenants and their social guests are necessarily users of rental apartmentcomplexes. We conclude that a question of material fact exists as to whether the irrigation ditch could present sufficient danger to tenants and their social guests of this apartment complex so that by not taking any remedial or warning

measures the landlordsmay have breached their duty to keep the premises reasonably safe. Whether the landlord breached this duty is a jury question. We do not mean that landlords are absolute insurers of the safety of their property and environs. What we do mean is that the duty of landlords to others in the management of their property is to use that degree of ordinary care which reasonable persons would use under the same or similar circumstances. Having affirmatively answered the first question of the two-partquery,we address the second question. Howdoes the fact the ditch is not located on Nicholsons' land affect Nicholsons' duty to keep hispremises reasonably safe? Nicholsons flatly state in their brief that there exists

no duty on the part of a landowner to guard against conditions on adjoining property over which they have no dominion or control. Nicholsons cite cases that stand for the proposition that an adjacentproperty owner is not liable for injuries sustained by a youth who gained access to a hazardous condition by crossing his land. These cases areclearly distinguishable from the instant case. Two cases, however, are on point. Walters v. Greenglade Villas Homeowners Association (Fla.App. 1981), 399 So.2d 538, 539, holds there is no duty on a condominium owners' association to erect a fence to shield smallchildren from the hazards of

a canal. InJonesv. United States (4thCir. 1957), 241 F.2d 26,the federalcourtconstruedMaryland law as it existed in 1.957 (Marylanddid not recognize the doctrine of attractive nuisance) and held that the primary duty to inform, advise and protect a child of tender years must rest upon the parents or others in locoparentis. Recently, in Piedalue 

### v. Clinton Elementary School DistrictNo. 2 (Mont.1984), 692P.2d 20, 41 St.Rep. 2344,we rejected a rigic? property line determination of liability. In Piedalue, the plaintiff was a social guest visiting a tenant of property owner, A1 Baide. Baide maintained a primary road for ingress and egress from his trailer park. Another road which appeared also to provide ingress and egress from the premises abruptly ended in an irrigation ditch 60 feet beyond Baide's property line. We held that Baide's duty to have a reasonably safe premises could extend beyond the premises to the dangerous condition located on land adjacent to Eaidefsproperty. The area owned by Nicholsons adjoining the irrigation ditch was in the dominion and control of Nicholsons. If the instrumental-ity causing harm is located adjacent to the landowner's property, and the instrumentality poses a clear and foreseeable danger to persons properly using the landowner's premises, we see no reason to shield the landowner from liabil-ityas amatter of law. A duty to take

some reasonableprecautionsmay exist. Thisduty may in someinstances be discharged by a warning; under other circumstances remedial actionmay be required. A jury should be given the opportunity to determine if Nicholsons used reasonable care unc?er the circumstances in discharqing any duty they may have owed to Jaylon Limberhand to maintain a safe premises. The fact that the irrigation ditch was not located on Nicholsons' land does not as a matter of law bar appellant's claim. Nicholsons further contend that 5 85-6-107, MCA, statutorily imposes exclusive liability on incorporatedwater users associations (BigDitch Company) for any injury caused by failure to maintain safe working and operating conditions of an jrrigation system. Nicholsons assert this statute bars appellant's case against them. Nicholsons read the statute too broadly. Section 85-6-107, MCA, appears in the code defining the rights and liabilities of ditch companies with respect to the State of Montana. The State disclaims liabi-lityfor injuries allegedly caused by its regul-a tion of such companies. We donot find the statuteapplicable. Nicholsons argue that constructing a fence or other barricade would interferewith Big DitchCompany's rights and place Nicholsons in the untenable position of safeguarding itsproperty orbeing subjected to suitby Big Ditch Company. This argument is based on speculation and lacks merit. Nicholsons offered no proof that erecting a fence would interfere with Rig Ditch Company's rights. A fence constructed on Nicholsons' property may not interfere with Big Ditch Company's right-of-way anymore than the construction of the apartment complex itself. Nicholsons further argue that they should not be required to construct a fence because other landowners havenot. Nicholsons'prudence is not measured by the imprudence, if any, of others. Nicholsons' duty is measured by the standard of reasonablecare. We reverse the order of the District Court qranting summary judgment to Nicholsons and hold that issues of material fact exist concerning whether Nicholsons exercised reasonable care i.n maintaining a safe premises. We remand this case for further proceedings in accordance with this opinion. Reversed inpart; affirmed inpart. Costs to appellant.

We Concur: 

# ddt~Lp Chief Justice